The Evolving Role of Precedent in WTO Dispute Settlement

Here are some snippets from today's panel report in the DS534 case (report, addendum with interim review section):

7.56. .... We recall that the panel in US – Washing Machines concluded, relying on the definition of pattern as a regular and intelligible form or sequence, that prices that are too high and prices that are too low do not belong in the same pattern.107 The Appellate Body upheld this finding of the panel, while additionally noting that a pattern cannot comprise export prices that differ significantly because they are significantly higher.108 However, our interpretation of the text leads us to a different conclusion than that reached by the panel and the Appellate Body in US – Washing Machines.

...

7.107. We are aware that our conclusions in this Report differ from those of the panel and the Appellate Body in US – Washing Machines as well as the panel in US – Anti-Dumping Methodologies (China). 178 This is the result of our objective assessment of the facts of this case, and the applicability of, and conformity with, the relevant covered agreements. We have carefully considered these reports of the panels and the Appellate Body, and found convincing or cogent reasons to arrive at conclusions different from those of the Appellate Body in US – Washing Machines as well as the panels in US – Washing Machines and US – Anti-Dumping Methodologies (China).179

And from the interim review:

2.1. Paragraph 7.19

2.1. Noting that we observed in paragraph 7.19 of the Interim Report that it is "well established by now in WTO jurisprudence" that "zeroing is prohibited under the W-W and T-T methodologies", the United States contends that this sentence as drafted may suggest that WTO rights and obligations originate in WTO panel or Appellate Body reports, rather than the covered agreements.1 Thus, the United States requests us to modify this sentence. Canada opposes the United States' request, asserting that this request is premised on a misinterpretation of Article 3.2 of the DSU and that interim review is not an appropriate time to reopen such an issue.2

2.2. We have made the modifications suggested by the United States because they do not change the meaning or scope of what is already stated in this paragraph of the Interim Report. We also do not share Canada's concerns with respect to the United States' request. In this regard, we note that the modifications made do not affect our own analysis or findings in this dispute.

...

2.7. Paragraph 7.107

2.13. The United States opposes the reference to "cogent reasons" in this paragraph and asks us to make edits by removing this reference.11 Canada opposes the United States' request, noting in this regard that interim review is not the appropriate stage for the United States to reopen this issue.12

2.14. We decline to make the changes suggested by the United States in interim review and consider that our Report adequately sets out the legal as well as factual basis for our conclusions in this dispute.

This is based on a quick skim. There may be more nuggets buried in there.

It's interesting both that the panel was willing to depart from an Appellate Body report, and that it did so under the existing "cogent reasons" approach to the role of precedent. Does that mean this panel struck the right balance and everyone can live with the current state of affairs? For what it's worth, USTR seems happy with the report.

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The Evolving Role of Precedent in WTO Dispute Settlement

Here are some snippets from today's panel report in the DS534 case (report, addendum with interim review section):

7.56. .... We recall that the panel in US – Washing Machines concluded, relying on the definition of pattern as a regular and intelligible form or sequence, that prices that are too high and prices that are too low do not belong in the same pattern.107 The Appellate Body upheld this finding of the panel, while additionally noting that a pattern cannot comprise export prices that differ significantly because they are significantly higher.108 However, our interpretation of the text leads us to a different conclusion than that reached by the panel and the Appellate Body in US – Washing Machines.

...

7.107. We are aware that our conclusions in this Report differ from those of the panel and the Appellate Body in US – Washing Machines as well as the panel in US – Anti-Dumping Methodologies (China). 178 This is the result of our objective assessment of the facts of this case, and the applicability of, and conformity with, the relevant covered agreements. We have carefully considered these reports of the panels and the Appellate Body, and found convincing or cogent reasons to arrive at conclusions different from those of the Appellate Body in US – Washing Machines as well as the panels in US – Washing Machines and US – Anti-Dumping Methodologies (China).179

And from the interim review:

2.1. Paragraph 7.19

2.1. Noting that we observed in paragraph 7.19 of the Interim Report that it is "well established by now in WTO jurisprudence" that "zeroing is prohibited under the W-W and T-T methodologies", the United States contends that this sentence as drafted may suggest that WTO rights and obligations originate in WTO panel or Appellate Body reports, rather than the covered agreements.1 Thus, the United States requests us to modify this sentence. Canada opposes the United States' request, asserting that this request is premised on a misinterpretation of Article 3.2 of the DSU and that interim review is not an appropriate time to reopen such an issue.2

2.2. We have made the modifications suggested by the United States because they do not change the meaning or scope of what is already stated in this paragraph of the Interim Report. We also do not share Canada's concerns with respect to the United States' request. In this regard, we note that the modifications made do not affect our own analysis or findings in this dispute.

...

2.7. Paragraph 7.107

2.13. The United States opposes the reference to "cogent reasons" in this paragraph and asks us to make edits by removing this reference.11 Canada opposes the United States' request, noting in this regard that interim review is not the appropriate stage for the United States to reopen this issue.12

2.14. We decline to make the changes suggested by the United States in interim review and consider that our Report adequately sets out the legal as well as factual basis for our conclusions in this dispute.

This is based on a quick skim. There may be more nuggets buried in there.

It's interesting both that the panel was willing to depart from an Appellate Body report, and that it did so under the existing "cogent reasons" approach to the role of precedent. Does that mean this panel struck the right balance and everyone can live with the current state of affairs? For what it's worth, USTR seems happy with the report.